The Virginia Defamation Law Blog

November 11, 2026

Evidence of Personal Spite Held Insufficient to Overcome Qualified Privilege

A defamation plaintiff confronted with a qualified privilege can defeat it by proving common-law malice, and one recognized way of doing so is to show that the defendant acted out of personal spite or ill will. What, then, of a defendant who, in the same text exchange in which he transmitted the allegedly defamatory document, called the plaintiff a “shitty human” who “deserves all of it”? In yesterday’s opinion in Kakar v. Sanghani, the Court of Appeals of Virginia held that such evidence did not compel a finding of malice and affirmed a judgment for the defendant after a bench trial. The court held that qualified privilege attached to a chief executive’s communication to a major shareholder (a question on which Virginia case law had been silent) and that the circuit court was not plainly wrong in finding that the plaintiff failed to prove malice by clear and convincing evidence. The opinion clarifies that to overcome qualified privilege based on spite or ill will, spite must be the motive for the communication, not merely present. The statement must be “actuated by” spite or ill will “independent of the occasion.” Hostility that coexists with a legitimate purpose is not enough.

The dispute grew out of a corporate acquisition. In November 2020, Octo Consulting Group, LLC acquired Sevatec, Inc., a company founded and run by Arvinder “Sonny” Kakar, who joined Octo as Head of Strategy and Vice Chair of the Board. Mehul Sanghani was Octo’s CEO. The relationship soured over the name of the combined company: Kakar insisted that the two names be merged, and the board decided the name would remain “Octo.” According to Sanghani, Kakar began to disengage from his responsibilities, canceling meetings, failing to participate in board meetings, and mismanaging projects to which he was assigned. On one occasion, Kakar allegedly cursed and made obscene gestures at Sanghani and another company representative. On another, Kakar allegedly threatened to punch the chairman of Octo’s parent company in the face.

October 15, 2026

Are Malicious Press Releases Announcing Litigation Protected by Privilege?

by Lee E. Berlik

Certain plaintiffs’ law firms follow a troubling playbook: they draft a complaint loaded with inflammatory (and often false) accusations, file it, and then issue a press release repeating the most sensational allegations. The tactic is designed to spread the allegations far and wide while hiding behind Virginia’s absolute privilege afforded to statements made in connection with legal proceedings. The complaint itself is untouchable, because statements made in judicial proceedings are absolutely privileged. The press release does the real damage, and its authors assume a privilege (either qualified or absolute) extends to public statements about the case provided they fairly characterize the allegations in the lawsuit. The fair-report privilege protects journalists covering litigation. The Virginia Supreme Court has not yet decided whether that privilege is available to the party who wrote the allegations in the first place. I think the court, if faced with the issue, would likely hold that press releases issued by the plaintiff or the plaintiff’s counsel are protected only by a qualified privilege that can be lost through abuse.

Virginia extends absolute immunity to statements made in the course of a judicial proceeding that are relevant and pertinent to the matter under inquiry, even when they are knowingly false. (See Lindeman v. Lesnick, 268 Va. 532 (2004)). The privilege protects the adjudicative process by letting parties, counsel, and witnesses speak freely to the tribunal. A press release is not part of the legal proceedings and therefore would not ordinarily be covered by the absolute judicial privilege. In the circuit-court case of D’Alfio v. Theuer that I wrote about several years ago, the court refused to extend the absolute privilege to a lawyer’s republication of a pleading to the media. There, a lawyer filed a lawsuit against a sea captain for employment discrimination and then faxed the complaint to the press. The court rejected the absolute-privilege defense because the captain was suing over the republication to reporters, a separate publication outside any judicial proceeding. The court held instead that the republication was covered by a qualified privilege that would be defeated if the lawyer shared the complaint with the press maliciously.

September 18, 2026

Accusations of Theft Held Actionable Absent Equivocation

by Lee E. Berlik

A recent decision from the Western District of Virginia offers a clean illustration of a principle that decides many Virginia defamation cases at the outset: context and word choice often determine whether a challenged statement will be treated as a verifiable assertion of fact or a non-actionable expression of opinion. In Bright v. Brooks (W.D. Va. July 29, 2026), Senior U.S. District Judge James P. Jones, applying Virginia law on a Rule 12(b)(6) motion, held that a supervisor’s accusations that a former employee had stolen property, committed burglary, and engaged in criminal conduct were falsifiable statements of fact sufficient to survive dismissal. At the same time, the court observed that a differently phrased accusation, hedged as conjecture, might instead be protected opinion.

Janet Bright, a former coordinator at the Lee County Department of Social Services, sued the department and its director, Michele Brooks, alleging she was fired in retaliation for whistleblower reports and that Brooks defamed her as part of the retaliatory scheme. The defamation claim arose from an October 2023 incident. On the night of October 22, Bright entered the DSS offices after hours with her sister, Julie Johnson (herself a DSS employee but whose employment status at the time was in dispute) so that Johnson could retrieve a document and her belongings, which she carried out in a donated duffel bag. The next day, Brooks made a series of statements about the incident to the Lee County Sheriff’s Office and other county officials. Bright was placed on administrative leave on October 25 and terminated on November 20.

August 31, 2026

Mistakes Are Not Malice: Subjective Doubt vs. Negligent Research

by Lee E. Berlik

In defamation cases where actual malice must be shown, a plaintiff must prove the defendant made a false statement with knowledge that it was false or with reckless disregard of falsity. “Reckless disregard” generally means a high degree of subjective awareness that a statement is probably false. A mere failure to sufficiently investigate the factual basis for a statement, without more, does not establish recklessness unless there are obvious reasons to doubt the veracity of a source. A federal court in Virginia granted summary judgment for the defendants earlier this month in a trade libel case in which the plaintiff could not raise a genuine dispute of material fact on actual malice. The case is Pecos River Talc LLC v. Emory (E.D. Va. Aug. 19, 2026). Although it applies New Jersey substantive law, its reasoning rests almost entirely on federal First Amendment precedent that applies with equal force in Virginia.

The defendants were pathologists experienced in mesothelioma science who often testified for plaintiffs in asbestos litigation. In March 2020, they published “Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients” in the American Journal of Industrial Medicine, and later repeated its conclusions in a letter to the editor and a MedicalResearch.com article. Pecos River Talc LLC, a subsidiary of Johnson & Johnson, alleged that the study disparaged its product. The suit centered on three categories of statements. The “review claim” asserted that subject exposures were identified through sworn deposition testimony and interrogatory answers. The “no overlap claim” presented the 75 subjects as additional to the 33 subjects in an earlier study by Jacqueline Moline. And the “exposure claim” stated that all 75 subjects’ only known asbestos exposure was cosmetic talc. Discovery established that the no overlap claim was literally false in that eight of the 75 subjects in fact overlapped with Moline’s cohort. Summary judgment was nevertheless granted in the defendants’ favor because Pecos River failed to prove the authors published any of the statements with actual malice.

July 29, 2026

Without Defamatory Sting, Privilege Defenses Go Unaddressed

by Lee E. Berlik

When a defamation defendant can invoke statutory reporting immunity, anti-SLAPP immunity, and common law qualified privilege all at once, one might expect an appellate court to resolve the case on one of those defenses. In Wang v. Taylor, Record No. 2006-25-3 (Va. Ct. App. July 7, 2026), the Court of Appeals of Virginia did no such thing. In an unpublished memorandum opinion by Judge Bernhard, the court affirmed a demurrer to a nurse practitioner’s defamation claim on the narrow ground that the challenged statements lacked the requisite defamatory “sting.” Because sting was lacking, the court found it unnecessary to address any of the three immunity defenses the defendants had raised. The opinion is a clean illustration of the court’s gatekeeping role in defamation cases and of how a plaintiff cannot support a claim by isolating minor factual inaccuracies within a communication whose defamatory substance is conceded to be true.

The opinion presents the following facts. Zhan Wang, a licensed nurse practitioner, worked in a psychiatric practice at Carilion New River Valley Medical Center beginning in August 2019. Laura Taylor directed the relevant department. The two had a contentious relationship: Wang had refused to sign a noncompete agreement in September 2022, had reported various patient-care concerns to Taylor throughout 2022 and 2023, and had escalated concerns about allegedly unlawful practices to an authority at the Virginia Board of Nursing. Wang submitted a 90-day resignation notice by email on April 16, 2023. In August 2023, Taylor filed a report with the Virginia Department of Health Professions under Code § 54.1-2400.6, the statute governing mandatory reports concerning health professionals.

July 15, 2026

Virginia’s Vicarious-Liability Presumption Applies at Pleading Stage

by Lee E. Berlik

Several years ago, this blog covered Garnett v. Remedi SeniorCare of Virginia, LLC, 892 F.3d 140 (4th Cir. 2018), in which the Fourth Circuit held that an employer could not be held vicariously liable for a coworker’s crude and offensive remarks because they fell outside the scope of the speaker’s employment. The apparent lesson was that a Virginia employer is not a guarantor of everything its employees say, and that a defamation plaintiff who cannot connect the statement to the employee’s job responsibilities will not survive a motion to dismiss. A recent unpublished Fourth Circuit decision, Auckland v. Gilead Sciences, Inc., complicates that lesson. Applying a pleading-stage presumption that the Supreme Court of Virginia developed after Garnett, the court vacated the dismissal of a vicarious-liability defamation claim and, over a pointed dissent from Judge Wilkinson, held that the plaintiff’s complaint had pleaded sufficient facts to proceed.

Ian Auckland worked remotely from Southwest Virginia for Gilead Sciences, a California-based biopharmaceutical company, for more than nine years. In 2023, he applied for a preceptorship program associated with Gilead’s Key Accounts Team, a role viewed as a stepping-stone to a full-time position on the team. Hilary Zachry, a California employee who served as a mentor for the preceptorship program, allegedly favored other candidates. According to Auckland, Zachry falsely told a coworker that Auckland had said “I want to rip your panties off” during a brief conversation at a work conference in Nashville, and then directed that coworker to report the fabricated accusation to Gilead. Auckland was accepted into the program, but was soon investigated and terminated. He sued both Zachry and Gilead in the Western District of Virginia, asserting claims of defamation and defamation per se, and sought to hold Gilead vicariously liable for Zachry’s conduct.

June 27, 2026

Defamation Is Not Confined to Written or Spoken Words

by Lee E. Berlik

When we think of defamation, we typically think of words: a slanderous remark, a libelous article, a defamatory social media post. But in Hopkins v. Ryan, Record No. 1192-25-3 (Va. Ct. App. June 23, 2026), the Court of Appeals of Virginia reminded us that defamation can take forms far removed from the spoken or written word. In a published opinion by Judge Raphael, the court reversed the dismissal of a defamation claim based not on any statement in the conventional sense, but on a fabricated invoice. The court held that a false business document, doctored to be attributed to the plaintiff and published to a third party to destroy his professional reputation, can constitute actionable defamation under Virginia law.

The facts alleged in the amended complaint paint a picture of workplace sabotage. David Hopkins worked as a commission-only sales representative for Consolidated Electrical Distributors, Inc. (“CED”), an electrical wholesale-distribution company. Dan Ryan was his direct supervisor at CED’s Roanoke office. Hopkins had spent years building customer relationships and earning commissions, and one of his largest accounts was a client identified in the complaint as “Company C.” Hopkins had earned more than $100,000 in commissions from Company C and had secured its commitment to a $1.8 million apartment-development project — a deal that would have generated substantial additional commissions for him.

May 8, 2026

Calling Someone a “Sexual Predator” Is Not Necessarily Defamatory

by Lee E. Berlik

In a decision that should give comfort to political commentators everywhere, the Court of Appeals of Virginia reversed a $1,000,000 defamation verdict against a citizen who called a local school board chairman a “SEXUAL PREDATOR/HARASSER” on Facebook. The case is Petrak v. Sawyers, Record No. 0110-24-4 (Va. Ct. App. Oct. 21, 2025), and it offers a textbook illustration of the principle that even the most inflammatory language can be protected opinion when the speaker fully discloses the facts on which the opinion is based. The plaintiff, Ryan Sawyers, pointed out the lack of sexual harassment complaints against him or criminal convictions and argued that the “sexual predator” label was therefore false and defamatory. Although the trial court agreed with him, the Court of Appeals did not, and clarified that statements that fully disclose their factual predicate and do not imply the existence of undisclosed defamatory facts are not actionable if that factual predicate is true.

The basic facts of the case are these. Ryan Sawyers was the Chairman of the Prince William County School Board. While serving in that role, he commented on a local librarian’s Facebook photo, referring to her as a “LILF.” The defendant, Bill Petrak, interpreted the remark as vulgar sexual innuendo and was disgusted by it, particularly considering Sawyers was a married man, serving on the school board, and running for Congress. (Sawyers denied the comment was sexual, claiming with a straight face that the acronym stood for “Librarian I’d Like to Fund”). Petrak, who had been leading a recall effort against Sawyers, responded with his own Facebook post in a group called “PWC Education Reform.” In that post, Petrak shared screenshots of Sawyers’s LILF comment, a tweet in which Sawyers had thanked then-Senator Al Franken, and a photograph of Franken groping (or pretending to grope) a sleeping woman on a military plane. Petrak added the following commentary:

Look closely and see the comment by Ryan Sawyers. It says “such a LILF”. I am told this person is a librarian. So basically Ryan Sawyers, a married man, is publicly saying on social media that he would like to have sex with this woman. If that isn’t the behavior of a SEXUAL PREDATOR or HARASSER I don’t know what is.

March 16, 2026

How Defamation’s Publication Requirement Limits the Relation-Back Doctrine

by Lee E. Berlik

The relation-back doctrine is a procedural mechanism that allows an amended pleading filed after the expiration of a statute of limitations to “relate back” to the filing date of the original complaint. The doctrine treats the amended pleading as if it had been filed on the date of the original complaint, thereby rescuing otherwise time-barred claims from dismissal. Its basic purpose is to permit parties to refine or clarify allegations as facts become better known, without forfeiting otherwise timely claims. After all, statutes of limitations exist to give defendants fair notice of potential liability, and if the original complaint already placed the defendant on notice of the general factual territory in dispute, allowing a later amendment within that same territory does not undermine the limitation period’s purpose. The defendant was already on notice; the amendment merely refines or expands a dispute they knew was coming.

The doctrine is codified in Virginia at Code § 8.01-6.1, which states that “an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment.” In federal court, see Fed. R. Civ. P. 15(c).

February 8, 2026

Association with Controversial Figures Held Not Defamatory

by Lee E. Berlik

In a recent decision underscoring the limits of defamation law in political contexts, a federal district court dismissed defamation claims brought by the American Conservative Union and its foundation against former employees who allegedly linked the organizations to George Soros, Mark Zuckerberg, and John Arnold. The court’s ruling in American Conservative Union v. Institute for Legislative Analysis clarifies that merely associating an organization with controversial figures—even those despised by the organization’s core constituency—does not constitute actionable defamation under Virginia law.

The plaintiffs, the American Conservative Union (ACU) and the American Conservative Union Foundation (ACUF), host the annual Conservative Political Action Conference (CPAC) and publish ratings of state and federal lawmakers based on voting records. In February 2024, the defendant Institute for Legislative Analysis published a series of articles titled the “Soros Files,” authored by a former ACU employee. The articles included statements such as:

“Soros, Zuckerberg and Arnold have so heavily invested in CPAC to control its scorecard”
“Meet CPAC Billionaire Funder George Soros”
“CPAC has at least two Soros-funded prosecutors on its staff”